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Walter L. Carter v. Michael J. Astrue

September 9, 2011

WALTER L. CARTER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER & MEMORANDUM

This case is here on "objections" to magistrate judge Clifford J. Proud's (the "magistrate") report and recommendation (the "report") suggesting that the commissioner of social security's decision denying plaintiff Walter L. Carter disability insurance benefits be affirmed. Plaintiff filed his objections, complaining that the magistrate mischaracterized vocational expert Lisa Courtney's (the "VE") testimony regarding sedentary work and inappropriately relied on the rule of law that a person who can do light work can also do sedentary work. The Court accepts the magistrate's recommendation to affirm the commissioner's decision to deny plaintiff disability insurance benefits.

I. Background

On April 9, 2010, plaintiff filed suit against defendant Michael J. Astrue, commissioner of social security (the "commissioner"), seeking judicial review of the commissioner's decision to deny benefits to plaintiff (Doc. 2). Specifically, pursuant to 42 U.S.C. § 405(g), plaintiff sought judicial review of the commissioner's decision to deny plaintiff disability insurance benefits. On October 28, 2010, plaintiff filed a motion for reversal and remand of the ALJ's hearing decision (Doc. 15). Defendant filed a brief in response (Doc. 26), and on April 22, 2011, the magistrate issued the report pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 35), recommending that the commissioner's finding that plaintiff was not disabled and therefore not entitled to disability insurance benefits be affirmed. The report was sent to the attorneys of record with a notice informing them of their right to appeal by way of filing "objections" within fourteen days of service of the report. Plaintiff timely filed objections to the report (Doc. 28). Defendant did not file a response to plaintiff's objections. Because plaintiff filed objections, this court must make a de novo determination of any part of the magistrate judge's disposition that has been properly objected to and may accept, reject, or modify, in whole or in part, the recommendations made by the magistrate judge. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); SDIL-LR 73.1(b). For the reasons that follow, the Court accepts the magistrate's recommendation to affirm the commissioner's decision to deny plaintiff disability insurance benefits.

II. Analysis

To qualify for disability benefits or supplemental security income, a claimant must be "disabled." Barnhart v. Thomas, 540 U.S. 20, 21 (2003). "Disabled" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A "physical or mental impairment" is an impairment resulting from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). A person qualifies as disabled, and thereby eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A). "'[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country." Id.

A five-step sequential evaluation process is used to determine whether an applicant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The steps are followed in sequential order from step one to five until a determination can be made as to whether the applicant is disabled or not disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(4). If that decision cannot be made prior to step four, the applicant's residual functional capacity (RFC) is assessed so that it can be used in steps four and five, if needed. 20 C.F.R. §§ 404.1520(a)(4), 416.920(4). "Your residual functional capacity is the most you can still do despite your limitations." 20 C.F.R. § 416.945.

Here, plaintiff does not object to any of the findings at step one through four. Thus, the Court only concerns itself with step five:

"At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled." 20 C.F.R. 416.920(a)(4)(v).

The claimant's age, education, and work experience are the so called "vocational factors" used along with a claimant's RFC to determine whether a claimant can make an adjustment to other work. See Thomas, 540 U.S. at 23; 20 C.F.R. § 404.1520(g).

Here, plaintiff makes two objections, both of which relate to the magistrate's findings regarding the VE's testimony about sedentary work under the Dictionary of Occupational Titles (DOT). First, plaintiff objects to the rationale for why the VE's testimony at page seven of the report is valid. Specifically, plaintiff contends that the VE would list the night patrol inspector job as sedentary, and that the VE's rationale for not eliminating the other jobs listed, i.e., hand stemmer and lamp inspector, also indicates that the VE believed those jobs were more accurately listed at the sedentary level. Second, plaintiff objects to the relevance of plaintiff's possible performance of sedentary work. As support, plaintiff points out that plaintiff was fifty years old at the time of the hearing and cites to 20 C.F.R. § 404.1563 and the Medical-Vocational Guidelines 201.00(g) to bolster plaintiff's argument that "[e]ven if sedentary level jobs could be listed they would not direct a finding of unfavorable in the case at bar (although they would lead to an amended onset date)."

Plaintiff is referring to 20 C.F.R. § 404.1563(d)'s provision that provides that "[i]f you are closely approaching advanced age (age 50-54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work." 20 C.F.R. § 404.1563(d). Section 201(g) of the Medical-Vocational Guidelines provides as follows:

"Individuals approaching advanced age (50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. For this age group, even a high school education or more (ordinarily completed in the remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education." 20 C.F.R. Part 404 Appendix 2, § 201.(g).

Plaintiff's arguments go directly to whether plaintiff should have been classified as being able to perform jobs at the sedentary or light work level. Accordingly, a certain level of background information about sedentary and light work is helpful. "Sedentary work involves lifting no more than 10 pounds at a time and ...


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